Madhya Pradesh High Court
Esshan Chandra Awasthi vs The State Of Madhya Pradesh on 10 October, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 10th OF OCTOBER, 2025
WRIT PETITION No. 3173 of 2014
ESSHAN CHANDRA AWASTHI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri D.P.Singh - learned counsel for the petitioner.
Shri G.K. Agarwal - learned Government Advocate for the
respondents No.1 and 2/State.
Shri Purushottam Lal Sharma - learned counsel for the respondent
No.3.
ORDER
This petition, under Article 226 of the Constitution of India, has been
filed seeking the following relief(s):
(i) That, the writ petition filed by the petitioner may kindly be allowed.
(ii) That, the impugned order dated 13.5.2014 Annexure P/1 passed by
the respondent-Bank may kindly be directed to be quashed.
(iii) That, any other writ order and direction, which is found just,
suitable and proper in the premises in favour of the petitioner, may also
kindly be issued;
and
(iv) Costs be awarded.
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2. Learned counsel for petitioner fairly submits that petitioner has
already retired; therefore, he confines his relief to only recovery part of
impugned order dated 13.5.2014 (Annexure P/1).
3. Brief facts of the case are that petitioner was appointed as Samiti
Prabandhak on 1.2.1968 and was promoted to the post of Supervisor w.e.f.
5.9.1998 and respondent No.5, who holds the Higher Secondary Certificate
to his credit, was appointed as a Peon w.e.f. 1.10.1975 and promoted to the
post of Clerk w.e.f.15.12.1986. Respondent No.5 was re-designated as Public
Relation Officer, though he did not possess the requisite qualification to hold
the post of Public Relation Officer. Thereafter, the Manager, Zila Sahkari
Kendriya Bank Maryadit, Gwalior, issued an order dated 9.3.2002 regarding
designation of the post of Public Relation Officer. One Jaswant Singh
challenged the said order dated 9.3.2002 by filing W.P. No.1081/2003,
which was allowed by order dated 3.11.2009 by quashing the orders dated
28.11.1992 and 9.3.2002. Thereafter, the petitioner preferred Writ Appeal
No.501/2009, which was dismissed by order dated 2.12.2009.
4. Thereafter, the petitioner filed an Special Leave Petition (SLP),
which was also dismissed. Subsequently, without affording any opportunity
of hearing to the petitioner, the impugned order dated 13.5.2014 (Annexure
P/1) was issued, whereby the petitioner was reverted to the post of Assistant
Accountant by recalling the earlier order dated 9.3.2002, and the salary/pay
scale granted to the petitioner for the post of Class-II(A) employee was
withdrawn. The difference of that pay has also been ordered to be recovered
from the petitioner. Being aggrieved by the aforesaid order, the petitioner has
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filed the present petition.
5. Learned counsel for the petitioner submits that before issuing the
impugned order dated 13.5.2014, no opportunity of hearing was afforded to
the petitioner. It is further submitted that the petitioner had worked on the
post of Public Relation Officer from 28.11.1992 to 13.5.2014.
6. Per contra, learned counsel for respondents No.1& 2/State and 3
supported the impugned order. Learned counsel for respondent No.3 submits
that the petitioner has an alternative remedy under Section 55(2) of the Co-
operative Societies Act before the appropriate forum; therefore, the present
petition is not maintainable and is liable to be dismissed on this ground
alone. It is further submitted that the petitioner was promoted to the post of
Assistant Accountant. Thereafter, additional charge of the post of Public
Relation Officer had been assigned to him, which was challenged by one
Jaswant Singh in W.P.No. 1081/2003 and said writ petition was allowed on
3.11.2009 by this Court. Thereafter, W.A. No.501/2009 was filed which was
dismissed by the Division Bench vide order 2.12.2009 by observing that
order impugned has rightly been passed and there is no requirement to
interfere in the order impugned. Learned counsel for respondent No.3
submits that as per judgment rendered in the case of Triloki Nath Pandey v.
M.P. Co-operative Diary Federation Limited reported in 2007 (2) MPLJ 152 ,
on ground of alternative remedy, the petition may be dismissed.
7. Heard learned counsel for the parties and perused the record.
8. The present petition pertains to the year 2014. The petitioner has
already retired during the pendency of this petition. After nearly eleven
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years, it would not be appropriate to dismiss the petition on the ground of
availability of an alternative remedy. In this regard, I may profitably refer the
judgment passed by this Court in the case of M.P. State Co-operative Dairy
Federation and others v. Madanlal Chourasiya , (2007) 2 MPLJ
594 . Admittedly, the petitioner worked on the post of Public Relation
Officer from 28.11.1992 till 13.05.2014. Petitioner has discharged duties of a
higher post i.e. Public Relation Officer has been paid accordingly. The
impugned order has been issued without affording any opportunity of
hearing to the petitioner and even without issuing any show cause notice.
Therefore, the respondents have failed to comply with the principles of
natural justice. The Division Bench of this Court has already held in W.A.
No.900/2023 (The State of Madhya Pradesh and others v. Lal Singh Jatav) ,
decided on 16.06.2025 that:
"If by the effect of the order passed by the Writ Court, petitioner
worked for some time, then no recovery shall be made for that
period when he worked actually on the post."
9. The Supreme Court in the case of State of Punjab Vs. Rafiq Masih,
(2015) 4 SCC 334 has held as under:-
18. It is not possible to postulate all situations of
hardship, which would govern employees on the issue
of recovery, where payments have mistakenly been
made by the employer, in excess of their entitlement.
Be that as it may, based on the decisions referred to
herein above, we may, as a ready reference, summarise
the following few situations, wherein recoveries by the
employers, would be impermissible in law:
(i) ........
(iii) ........
( i v ) Recovery in cases where an employee has
wrongfully been required to discharge duties of a higher
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post, and has been paid accordingly, even though he
should have rightfully been required to work against
an inferior post.
10. Petitioner would be entitled to the benefit of the dictum of Apex
Court in the case of Rafiq Masih (supra) as the case of petitioner is covered
in a situation no.iv as petitioner worked on the higher post i.e. Public
Relation Officer from 28.11.1992 till 13.5.2014 and has been paid salary
accordingly.
11. From perusal of record, it is seen that before making recovery of
excess amount paid to the petitioner, he should have been given an
opportunity of hearing because order withdrawing the benefit already
granted to the petitioner carries civil consequences and it is a settled principle
of law that if any order passed by the authority carries civil consequences, the
same can be passed only after following the principles of natural justice.
Admittedly, in the present case, that has not been done and, therefore, the
impugned recovery cannot be given a seal of approval and pursuant thereto,
no recovery can be made from the petitioner.
12. Considering the above, the present petition is partly allowed. Part of the
impugned order dated 13.5.2014 (Annexure P/1) pertaining to recovery is hereby
quashed. The respondents are directed to return the recovered amount to the petitioner
within a period of two months from the date of receipt of certified copy of this order.
(ANAND SINGH BAHRAWAT)
JUDGE
Ahmad
